INDIANS LOSING SLOTS? STATE SUPREME COURT RULES GAMING INITIATIVE VIOLATES CONSTITUTION.

Byline: Beth Barrett Staff Writer

The California Supreme Court struck down the Indian gaming initiative as a violation of the state constitution, putting tribal slot machines at risk of closure by federal authorities within 45 days unless Gov. Gray Davis intervenes.

The justices ruled 6-1 that Proposition 5 - target last year of the costliest initiative campaign in state history - violates constitutional prohibitions against Las Vegas- and New Jersey-style casinos. The initiative changed state law but would have failed if it were proposed as a constitutional amendment requiring a two-thirds majority.

The decision automatically activates a federal court order and time line affecting many of the tribes' largest casinos in Southern California, including those in Palm Springs, said Thom Mrozek, spokesman for the U.S. Attorney's Central District in Los Angeles.

To keep the 9th U.S. District Court's order from being executed against 10 tribes, or about a quarter of those in California, the governor and the tribes must reach agreement and sign a ``compact'' spelling out the terms and conditions of the casinos' continued operations, Mrozek said.

The order, affecting tribes from San Luis Obispo to Orange County, is the central legal threat now posed to the tribes, said the tribes' attorney Mark Epstein, an attorney with the Los Angeles law firm Munger, Tolles & Olson.

Negotiations between the tribes and Davis' representatives began before the ruling.

``Our hope is that the governor will intervene,'' said Daniel Tucker, chairman of the California Nations Indian Gaming Association.

Davis said in a statement that while he respected the Supreme Court's decision and would abide by it, he also would work to find a ``constitutionally-acceptable means of implementing the people's will'' as expressed through Proposition 5.

``I intend to work with the Legislature, the tribes and all interested parties to achieve that result,'' Davis said.

``In addition to the benefits to the tribes themselves, I am mindful of the fact that some 16,000 Californians currently employed by Indian gaming may lose their source of employment if we cannot respond to this challenge.''

Epstein said there is general agreement that ``people want a resolution short of the marshals swooping in.''

Mrozek said the federal government just wants California Indian gaming to be in compliance with the law, which the compact would satisfy. Former Gov. Pete Wilson was never willing to enter into such a compact, he added.

Proposition 5, approved by 63 percent of the voters in November, essentially allowed the tribes to execute a compact allowing slot machines unilaterally - without the governor's signature, Mrozek said.

Nevada watching

The ongoing negotiations between Davis and the tribes are being closely monitored by Nevada gambling and other groups that opposed Proposition 5.

Any gambling agreement ``should be negotiated with the full participation of the California state government,'' said Jack Gribbon, with the Hotel Employees and Restaurant Employees International Union, which had challenged Proposition 5 saying casino workers need greater protections.

The tribes' backup legal strategy is to go to voters with another initiative on the ballot next year asking for a constitutional amendment to allow the gambling, Tucker said.

There isn't time to gather signatures and pass such an initiative to amend the constitution, however, before the federal order is slated to take effect.

The court's ruling - with Justice Joyce Kennard dissenting - again stirred up all the passions surrounding the initiative process which has been a part of California politics since 1911.

No other state has used initiatives as frequently or to such great effect as California, said Ralph Nader, the founder of Public Citizen, a Washington, D.C.-based nonprofit watchdog organization.

Nader said initiatives remain the state's best protection against corrupt political institutions, and that the courts simply act as a check to make sure they are not unconstitutionally abused by well-funded special interests to ride ``roughshod'' over the rest of society.

``The strength of the initiative is that it bypasses bought and rented politicians on behalf of grass-roots democracy,'' said Nader, who is putting together a grass-roots organization, ``1,000 Oaks,'' in California to coordinate signature drives for upcoming initiatives.

Nader wants the initiative system itself reformed - likely through an initiative - including a possible constitutional prohibition on paid signature-gatherers and limits on initiative-campaign spending.

Ron Unz, a Silicon Valley software entrepreneur, who in recent years has used the initiative system to end bilingual education, is working on a campaign finance measure, which is intended to reform the initiative process as well.

Groups voluntarily agreeing to spending limits would get some free air time to explain their initiatives, Unz said.

Still, Unz said, time and again initiatives - like his Proposition 227 ``English for the Children'' campaign - have won despite being vastly outspent.

``More important than the funding is whether the idea is right, and whether it is ripe,'' Unz said. ``Ideas do triumph over advertising and that is saying something good about the state of our democracy.''

Preferring open court

Kris Vosburgh, executive director for the Howard Jarvis Taxpayers Association, the group that changed how many people viewed initiatives with the passage of Prop. 13, said the group is not overly concerned when the courts intervene.

Rather, he said, the association worries about the kind of federal mediation Gov. Davis' administration has engaged in involving Prop. 187, the initiative that sought to limit state services to illegal immigrants, and which is now in legal limbo.

``We would rather see matters settled in open court,'' Vosburgh said.

Otherwise, he said the group does not want to see restrictions placed on the initiative qualifying process.

``You would risk choking off the citizen from ever getting on the ballot,'' he said.

Robert Fellmeth, director of the Center for Public Interest Law at the University of San Diego Law School, said there should be provisions by which groups could improve their initiatives before they go to voters, to help avoid court challenges later on.

Fellmeth, whose group won a campaign financing reform initiative several years ago only to have it superseded by a second measure that got more signatures and which was eventually ruled unconstitutional, suggested that initiatives go to the Legislature for a preliminary airing to help shake out opposing viewpoints.

Fellmeth said initiatives might be the only way to pass tough measures.

``We need the initiative process more than ever today,'' he said.

CAPTION(S):

Photo

Photo: Anthony Pico, left, chairman of the Viejas Band of the Kumeyaay Nation, and Daniel Tucker, head of the California Nations Indian Gaming Association, react to the ruling Monday.

Kent C. Horner/Associated Press